Eshelman v. Key – Dog Bite Injury Against Child by Police Dog

It’s rare in many states that a severe dog bite injury on a child – especially if the attack was unprovoked – would not be compensable.
North Carolina’s dog bite laws are spread out over several different statutes.This state does recognize strict liability if:

The bite occurred while the dog’s owner intentionally allowed it to violate the state prohibition against running at-large (assuming dog is at least 6-months-old);

Dog was kept for purposes of dog fighting;

Dog was previously declared a “potentially dangerous dog” due to previous conduct

Dog without provocation killed or inflicted serious injury on a human

But even under these circumstances, there may be complexities in the case that are not immediately apparent.

That’s why it’s imperative to consult with an experienced Asheville injury lawyer who can review the circumstances, explain your rights and formulate an effective strategy for pursuing compensation.
The case of Eshelman v. Key contains a unique set of circumstances. This was a case out of Georgia involving a police dog that was “off-duty” with its owner, a county law enforcement officer and dog handler.

According to court records, the dog was trained to help assist in apprehending those suspected of committing criminal acts. Although she was “owned” by the county, she was cared for and maintained by defendant law enforcement officer. When the dog was not working, it was kept at defendant’s home. While there, she often placed the dog in a portable kennel outside her home.

One afternoon, defendant apparently did not secure the kennel door. The dog escaped. It raced into the neighborhood, where it encountered plaintiff’s 11-year-old son. The dog attacked, causing the boy to sustain serious injuries to his arm.

Defendant sued the law enforcement officer, alleging she failed to restrain the dog and was therefore responsible. However, defendant argued she was entitled to protection on grounds of official immunity. Trial court denied that request as did the appeals court, but the Georgia Supreme Court reversed.

The reason is because, as a general rule, law enforcement officers are protected from lawsuits from personal liability for torts occurring in the performance of official job functions. The two exceptions (in Georgia) are if the injury was caused by an action motivated by malice or intent or if it was in the performance of a ministerial function.

Here, there was no malice. The question was whether this was a ministerial function or a discretionary one. The former involves simple, definite execution of a specific duty. Discretionary action, meanwhile, calls for personal deliberation and judgment and acting on that in a way that is not specifically directed.

Court determined the action by the officer in failing to lock the door was discretionary.

Even assuming the dog was vicious and assuming defendant owed a duty of care to keep it secured in order to stop it from injuring others, the question was further whether this was a ministerial or discretionary act. It’s a question that only arose as a result of defendant’s position as a law enforcement officer, and thus allowed her to evade liability for actions which anyone else would have been held to account.